OLIVER v. MAIN et al

Filing 135

LETTER ORDER-OPINION granting Day Pitneys 130 Motion to Withdraw as Attorney for Plaintiff Oliver, etc. Attorney PAUL R. MARINO terminated.. Signed by Magistrate Judge Steven C. Mannion on 03/07/2017. (ek)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHAMBERS OF

MARTIN LUTHER KING
COURTHOUSE
50 WALNUT ST.
ROOM 3053
NEWARK, NJ 07101
973-645-3827

STEVEN C. MANNION
UNITED STATES MAGISTRATE JUDGE

March 7, 2017

LETTER ORDER-OPINION

Re:

[D.E. 130, Motion to Withdraw as Counsel]
Oliver v. Main
Civil Action No. 12-cv-3757 (SDW)(SCM)

Dear Litigants:
Before the Court is Day Pitney LLP’s motion to withdraw as counsel for Plaintiff Lorenzo
Oliver in the above-captioned matter.1 Mr. Oliver has not opposed the motion.2 Upon careful
consideration of the docket and the motion record, for the reasons set forth below, Day Pitney’s
motion to withdraw is GRANTED.

I.

PROCEDURAL HISTORY
Paul R. Marino, Esq. is a partner at the office of Day Pitney, LLP. On October 1, 2014,

Mr. Marino was appointed as pro bono counsel for Mr. Lorenzo Oliver.3 On October 6, 2014, Mr.

ECF Docket Entry (“D.E.”) 130.
2 A court may consider a motion to be uncontested when opposition has not been filed as

required by local rule. Taylor v. Harrisburg Area Comm. Coil., 2014 W.L. 4071644 (3rd Cir.
2014). Opposition to any motion is due at least 14 days prior to the original return date, unless
the Court otherwise orders or an automatic extension is obtained. L. Civ. R. 7.1 (d)(2). The return
date for this motion was March 6, 2017. Mr. Oliver did not oppose the motion or request an
extension of time to respond. This motion is therefore considered to be uncontested.
(D.E. 83).

Marino entered his notice of appearance.4 On December 2, 2016, the parties and their counsel
appeared for a settlement conference with the Court. At the conclusion of the Conference, a 60day Order was entered.5
On January 27, 2017, Mr. Marino received a copy of a letter that Mr. Oliver forwarded to
the Court advising that he intended to file a motion to withdraw from the settlement. That same
day, Mr. Marino submitted a letter to the Court advising that his firm would not be able to continue
to represent Mr. Oliver in seeking to vacate the settlement based on a conflict of interest.6
On January 30, 2017, Mr. Oliver filed a motion to withdraw from the settlement without
the assistance of counsel.7 The basis for Day Pitney’s motion to withdraw as counsel is that Mr.
Oliver’s motion and allegations in support created a conflict of interest that prevents the firm from
continuing to represent Mr. Oliver in this action.

II.

LEGAL DISCUSSION

The Court’s Local Civil Rules provide, in pertinent part, that “[u]nless other counsel is
substituted, no attorney may withdraw an appearance except by leave of Court.”8 “[T]he decision
of whether or not to permit withdrawal is within the discretion of the court.”9 “In granting or

(D.E. 85).
(D.E. 124).
6

(D. E. 125).

‘

(D. E.127).

g

I. Civ. R. 102.1.
Welsh v. Maersk Line, Ltd., No. 06-2047 (RBK), 2008 U.S. Dist. LEXIS 47992, *2 (D.N.J.
2

denying a motion to withdraw, a court will consider factors such as: [(a)] the reasons why
withdrawal is sought; (b) the prejudice withdrawal may cause to other litigants; (c) the hami
withdrawal might cause to the administration of justice; and (d) the degree to which withdrawal
will delay the resolution of the case.”10
“The Rules of Professional Conduct of the American Bar association as revised by the New
Jersey Supreme Court shall govern the conduct of the members of the bar admitted to practice in
this Court, subject to such modifications as may be required or permitted by Federal statute,
regulation, court rule or decision of law.” Rule of Professional Conduct 1.16 sets forth the
situations in which an attorney may or, alternatively, must, withdraw from the representation of a
client. For instance, subsection (a) of that Rule, which governs mandatory withdrawal, states, in
pertinent part, that an attorney “shall withdraw from the representation of a client if

.

.

.

the

representation will result in violation of the Rules of Professional Conduct or other law.” (emphasis
added). Subsection (b), which governs permissive withdrawal, provides, in relevant part:
[A] lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect
on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s
services that the lawyer reasonably believes is criminal or
fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or
fraud;
(4) the client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental

June 23, 2008) (citing Rusinow v. Kamara, 920 F. Supp. 69, 71 (D.N.J. 1996)).
‘°

Rusinow, 920 F. Supp. at 71.

i,

L. Civ. R. 103.1.
3

disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer’s services and has been given reasonable
warning that the lawyer will withdraw unless the obligation is
fulfilled;

(6) the representation will result in an unreasonable financial burden
on the lawyer or has been rendered unreasonably difficult by the
client; or
(7) other good cause for withdrawal exists.
R.P.C. 1.16(b).

Here, Mr. Marino represents that he and his firm have a conflict of interest in continuing
to represent Mr. Oliver in connection with his motion to withdraw from the settlement. Mr.
Oliver’s motion to withdraw from the settlement alleges that Mr. Marino had an obligation to
inform him that a 1991 judgment for $44,000 existed against him before he agreed to settle, and
failed to meet that obligation.12 The Court finds that Mr. Marino has good cause to withdraw as
a result of the conflict of interest that would ensue if counsel were required to represent Mr. Oliver
on his motion to withdraw from the settlement. Therefore, Mr. Marino has demonstrated good
cause for his motion to withdraw.
An appropriate Order follows:
ORDER

IT IS on this Tuesday, March 07, 2017,
1. ORDERED, that Day Pitney’s motion to withdraw as counsel for Plaintiff Oliver is
GRANTED; and it is further
2. ORDERED, that Day Pitney shall immediately provide Plaintiff with copies of this Order; and
it is further

12

(D.E.127, at 3).
4

3. ORDERED, the Clerk of the Court shall update the docket in this action to reflect that Plaintiff
Oliver is now representing himself pro Se, and shall include Mr. Oliver’s address (as set forth
in Day Pitney LLP’s Notice of Motion for Leave to Withdraw as Counsel (D.E. 130)), on the
docket.

*

*

Honorable Steve Mannion, U.S.M.J.
United States Distnct Court,
for the District of New Jersey
phone: [phone]

3/7/2017 9:24:58 PM

Original: Clerk of the Court
Hon. Susan D. Wigenton, U.S.D.J.
cc: All parties
file

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